What is Living Separate and Apart How Does it Affect My Divorce?

The Date of Separation in a dissolution of marriage action can have a financial impact on the parties. The Family Code states that the “earnings and accumulations of a spouse and the minor children living with, or in the custody of the spouse, while living separate and apart from the other spouse, are the separate property of the spouse”. Otherwise, generally speaking, the earnings and accumulations can be considered community property and may be subject to an equal division.
The question becomes, “How do you determine separate and apart?” There is no set statutory definition. The Family Law Courts have through a series of cases tried to determine guidelines that can be considered in making this determination.
The first factor is “Have the parties come to a parting of the ways with no present intention of resuming marital relations”. An alternative factor can be “Does the parties’ conduct evidence a complete and final breakdown in the marital relationship. Living in separate residences is not necessarily “separate and apart”. However, living under the same roof physically apart, with one spouse’s intent that the marriage is ended may be sufficient to satisfy the “separate and apart” requirement.
Other factors that can be taken into consideration by the Court in determining “separate and apart” are the type of contact the parties maintain, going on family vacations, attending social events together, filing joint tax returns, exchange of gifts on special occasions, the payment of household bills, and engaging in sexual relations.
To summarize, the bottom line is “What is the parties’ intent”? The Court is required to consider all evidence relating to this intent. The burden of proof that applies to determining the date of separation is a preponderance of the evidence. Depending on how the Court determines the date of separation, it can have a substantial impact on the financial issues of the divorce.
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